Overview

• In Bivens v. Zep, Inc., the Sixth Circuit replaced the longstanding EEOC negligence standard with an intent-based test for nonemployee harassment claims
• The court ruled that employers are liable only if they intended or were substantially certain that a customer’s unlawful harassment would occur
• Citing the Supreme Court’s Loper Bright decision, the panel refused to defer to EEOC guidance and conducted its own interpretation of Title VII
• The decision binds federal cases in Kentucky, Michigan, Ohio and Tennessee but diverges from other circuits’ negligence approach, creating split-jurisdiction uncertainty
• Plaintiff’s counsel has announced plans to seek full Sixth Circuit review, setting the stage for further appellate or Supreme Court consideration